Article 4(1) of Directive 2008/98/EC, the Waste Framework Directive, established the current waste hierarchy. It is often displayed as an inverted pyramid, which reads from the top down: (a) prevention (b) preparing for re-use (c) recycling (d) other recovery, eg energy recovery (e) disposal. Article 3 defines certain of the terms used.
In Skrytek v Secretary of State for Local Government [2013] EWHC 733 (Admin) the claimant challenged the decision of an inspector to grant planning permission on appeal for a waste treatment plant intended to treat municipal solid waste. The technology chosen, after the separation out of recyclable content, involved mechanical biological treatment with gasification and incineration. The plant would have the additional capability of producing electricity, by way of energy recovery, to be fed into the grid and would have the potential – at a later stage – to move from an “electricity only” facility to a “combined heat and power” facility.
The claimant, representing a group of objectors, contended that the inspector erred in law by failing properly to interpret the definitions of “recovery” and “disposal” as provided for in the Waste Framework Directive. The court dismissed the claim, holding that on a true reading of his decision letter he had not so erred. These were its findings.
The inspector had quite properly recognised that just generating electricity did not qualify the plant to be treated as a recovery process. To qualify, it would have to raise its energy efficiency by also exporting heat. At that stage it could then ask the Environment Agency to reclassify the plant, for permitting purposes, as an energy from waste facility. He had also recognised that the regional development plan (then in force) required the management of waste to be taken up the waste hierarchy.
Finally, he had been entitled to take into account DEFRA’s “Guidance on Applying the Waste Hierarchy”, and in particular a specific table on page 6, dated June 2011. This made it clear that all energy recovery technologies, whether electricity only, heat only or heat and power combined, come higher in the hierarchy than disposal. (This guidance is based on current scientific research undertaken by DEFRA.)
Without suggesting that the plant, even in electricity mode only, would fall into the category of recovery, nevertheless the inspector was entitled to conclude that it would result in waste being treated higher up the waste hierarchy than mere disposal to landfill.
John Martin
